2005 Ct. Sup. 11889-dx
No. CV-02 0281664-SConnecticut Superior Court Judicial District of New Haven at Meriden
August 11, 2005
MEMORANDUM OF DECISION
MARK H. TAYLOR, JUDGE.
I. BACKGROUND
The plaintiff, NIPMUC Properties, LLC, seeks a declaratory judgment for the delivery of a lease, currently held in escrow, for a leasehold interest in land located in Meriden, Connecticut that it once owned.[1] All of the defendants in this action have been involved in the disposition of this land, either by claims of title or by contractual interest. Although the plaintiff once owned the land, it contracted with Summitwood Development, LLP (Summitwood), to acquire and sell the land. The defendant, PDC El Paso Meriden, LLC (PDC El Paso), contracted to purchase the land for the purpose of building an electric generation facility and the land was placed in a trust for that purpose. When PDC El Paso concluded that it could not perform the contract, the defendant Meriden Gas Turbines, LLC, (MGT), purchased the land for the same purpose. Subsequent to a closing on the title to the property, the Connecticut siting council (CSC) ordered a portion of the land transferred to the city of Meriden (Meriden), notwithstanding the plaintiff’s claim to a leasehold interest in the same land.
In a counterclaim, MGT originally sought a judgment declaring the lease to be neither valid nor in effect. This counterclaim was abandoned at a hearing held on July 15, 2005. In addition, MGT and Meriden claim three special defenses. The first special defense is that a condition precedent for the delivery of the lease held in escrow, namely, that it was to be approved by the CSC, has not been met. Their second defense is that the lease is illegal since it is contrary to a standing order of the CSC to transfer the land to Meriden. In their third special defense, they claim that the plaintiff is collaterally estopped from attacking the ruling of the CSC. Meriden alone seeks dismissal CT Page 11889-dy for lack of subject-matter jurisdiction.
Prior to the hearings on this matter, the parties entered into a written stipulation of the relevant facts surrounding the real estate transactions giving rise to this adjudication of their legal rights.[2] For purposes of expedience and clarity, the court will summarize the events briefly before focusing on the particular, relevant facts.
The court heard evidence in this matter on December 2, 2004 and December 17, 2004. On both occasions, the court inquired whether the CSC ought to be made a party to this action. The court raised this issue, because the plaintiff seeks the delivery of a lease of 52 acres of land, which, if enforceable, would directly contravene the CSC’s order to transfer title of the same 52 acres to Meriden. Only Meriden argued in favor of the addition of the CSC as a party. Nonetheless, the court ordered a briefing schedule on this issue, to be decided in advance of rendering a final decision. On April 27, 2005, the court ruled that the CSC was not a necessary party. See section III-C, Discussion infra. Final arguments in this matter were heard by the court on July 15, 2005.
II. FACTS A. Facts Concerning the Agreement of The Parties
The plaintiff held title to a parcel of land comprised of approximately 845 acres[3] along the Metacomet ridgeline in the towns of Meriden and Berlin. Due to the size and nature of the parcel, as well as its proximity to the Algonquin gas pipeline, the land became the subject of a proposal to build a 544 megawatt gas-fired electric generation facility in the late 1990s, shortly after Connecticut’s enacted legislation deregulating the generation of electric power.[4] In furtherance of this proposal, the plaintiff entered into a contract with Summitwood. Pursuant to this contract, Summitwood obtained the exclusive right to purchase the property. Summitwood then entered into an agreement to sell the land to PDC El Paso. PDC El Paso then initiated the process to obtain permits necessary to build an electric generation facility on this property, including a Certificate of Environmental Compatibility and Public Need issued by the CSC, pursuant to General Statutes §§ 16-50g et seq. All of the parties to this action understood that the construction of such an electric generation facility CT Page 11889-ez involved an extensive permitting process and was ultimately subject to the approval of the CSC.[5]
The original purchase and sale agreement called for the buyer, PDC El Paso, to return 30 acres of the 845-acre parcel to Summitwood after the closing. The intent was for Summitwood to retain this property on behalf of, and for development by the plaintiff, the original owner of the 845-acre parcel. The precise location of the thirty acres was to be determined by the parties at a future date.
PDC El Paso was unable to perform its contract to purchase the land from Summitwood, which required closing on the title to the property no later than December 31, 2000. PDC El Paso was unable to perform the contract in a timely manner, primarily because its gas turbine manufacturer could not supply the necessary gas turbines to power the electric generation facility. This problem required a significant change in the design of the facility. All of the parties agreed that this design change required the further consideration and approval by the CSC.[6]
With the understanding that PDC El Paso would default under the contract if it failed to close by December 31, 2000, the parties negotiated an amendment to the purchase and sale agreement, dated December 21, 2000 (amendment). The parties, through their representatives, further memorialized their understanding in a letter dated December 21, 2000 (letter).[7] The interpretation of the language of these full exhibits is of critical importance to the determination of the rights and obligations of the parties to this action.
Pursuant to the amendment, the parties generally agreed to extend the closing date to January 10, 2001. If the closing occurred on or before this date, the purchase price of $12 million would be reduced by $500,000. The amendment also provided that PDC El Paso would lease approximately 52[8] acres of the 845-acre parcel back to Summitwood on behalf of the plaintiff.[9] The lease of the 52-acre parcel was for a period of 99 years with the possibility of extension for an additional 99 years. This long-term lease of the 52 acres replaced the provision in the original agreement in which Summitwood had the right to retain 30 acres on behalf of the plaintiff. None of the parties dispute these provisions in the amendment to the agreement. CT Page 11889-ea
This vigorously negotiated amendment further provided that the lease would be placed in escrow pending the outcome of CSC approval. The specific language of section 2(a) of the amendment provides that “[t]he Escrow Agent shall deliver the Lease to Summitwood upon the approval of the Connecticut Siting Council of the Buyer’s application to amend the decision and order issued by the Connecticut Siting Council for the Power Plant described in the Purchase Agreement.” Unfortunately, the term “Power Plant” is neither defined nor used in the Purchase Agreement.[10]
In addition to the amendment dated December 21, 2000, the parties further memorialized their agreement in a letter, also dated December 21, 2000. The letter states that “notwithstanding anything contained in the [amended] agreement to the contrary, in the event of a denial by the Connecticut Siting Council of PDC El Paso[‘s] . . . application for approval of the transactions described in Section 2(a) of the Amendment, the undersigned shall pay to Summitwood the additional sum of Seven Hundred Sixty Thousand ($760,000.00) Dollars.”[11] Section 2(a) of the amendment primarily describes the 52-acre lease-back agreement, the escrow and the permitted uses of the leasehold property by Summitwood. The letter also describes two circumstances under which the $760,000 payment would not be due to Summitwood: (1) if the Siting Council “approves the transactions described in Section 2(a) of the Amendment,” or (2) “if no closing occurs.” Under either scenario, Summitwood would retain an ownership interest in the land in question and therefore, logically, the $760,000 payment would not be due to Summitwood.
On January 10, 2001, PDC El Paso assigned all of its rights and obligations under the amended purchase and sale agreement to MGT. On the same day, MGT closed on the 845-acre parcel. The MGT deed indicates that its title is subject to the 52-acre lease held in escrow. The lease, however, was not recorded at that time.[12]
Subsequently, on September 12, 2001, the CSC approved the proposed changes to the electric generation facility, but rejected the proposed lease-back of 52 acres to Summitwood.
Instead, the CSC directed that title to the 52 acres be donated to Meriden. Despite several public hearings and numerous public records concerning the application for the project, covering the span of several years, the first specific request made to the CSC for approval of land to be retained by the plaintiff was made on CT Page 11889-eb September 7, 2001. This representation was made just five days prior to its rejection by the CSC,[13] although correspondence between PDC El Paso and the plaintiff indicate that this land was identified on a map dated April 26, 2001, and presumably submitted to the CSC.[14]
The plaintiff claims that the 52-acre lease was to be delivered upon CSC’s approval of the proposed changes to the electric generation facility alone, the so-called “Power Plant.” The plaintiff, therefore, believes that the “contingency”[15]
for delivery of the lease by the escrow agent has been satisfied by the CSC’s approval of design changes to the electric generation facility. The defendants, however, claim that the lease was to be delivered upon approval of the proposed changes to the electric generation facility as well as the proposed increase in the acreage retained by the plaintiff from 30 to 52 acres. The defendants, therefore, argue that the “condition” for delivery of the lease has not been satisfied because the CSC did not approve the leasing arrangement. They contend that approval of the lease is a condition precedent to its delivery, as it is an essential element of the application to amend the original decision and order issued by the CSC for the “Power Plant.” In light of this dispute, the escrow agent has refused the plaintiff’s request to deliver the lease to Summitwood.
Credible evidence was presented to the court that Joseph Carabetta, a principal of the plaintiffs, and agent for Summitwood, clearly understood that the 52-acre lease required CSC approval. It is equally clear that PDC El Paso and MGT had always agreed to return a portion of the 845-acre parcel to the plaintiff, and that this was a critical element of the consideration for the purchase and sale agreement.
Credible evidence was also presented to the court that Carabetta understood that Meriden’s support for the 52-acre lease was essential for CSC approval, and that he personally undertook this responsibility. Nonetheless, the plaintiff strenuously argues that this land was the subject of an agreement between two private parties, and that neither it nor the land was subject to CSC jurisdiction. In addition, the plaintiff claims that none of the defendants had the right to represent to anyone, and in particular to the CSC, that they controlled the property in question. See Transcript dated December 2, 2004 at p. 55. It is interesting to note however, that at the time of the CSC’s order concerning the lease, there had already been a closing on the CT Page 11889-ec title to the whole 845-acre parcel by MGT, which occurred on January 10, 2001. Although the deed transferred at the closing stated that it was subject to the 52-acre lease, the lease was unrecorded at the time of the closing and otherwise did not comply with the statutory requirements regarding the recording of leases in excess of one year.[16]
B. Facts Relating to the CSC as A Necessary Party
With the exception of Meriden, the parties claim that the CSC is not a necessary party to this litigation. Based upon information provided to the court in its brief, MGT claims that the CSC is indeed aware of this litigation and has issued an enforcement order concerning the electric generation facility that excludes the enforcement of its order to transfer the 52-acre parcel in question to Meriden.[17]
III. DISCUSSION A. The Agreement of the Parties
The “interpretation of contract provisions is guided by well established principles of contract law. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.”Tallmage Brothers, Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000). (Citations omitted; internal quotation marks omitted.)
The parties to this action are sophisticated business people, who have been represented by counsel throughout the transactions involved in this disputed matter. Therefore, as in Tallmage Brothers, this raises a rebuttable presumption of definitiveness CT Page 11889-ed of the specific language used by the parties in their agreement. In the present case, however, the various uses of the 845-acre site were the subject of an application for a Certificate of Environmental Compatibility and Public Need to build a gas powered electric generation facility, requiring the approval of the CSC. The outcome of this state regulatory process was unknowable at the time of the various agreements made between the parties. Therefore, the parties faced an undeniable uncertainty, whether the details of their private agreement, involving the construction of a new gas powered electric generation facility, were going to be approved by the CSC.
During their extensive negotiations, the parties reached an agreement for the purchase and sale of land, and the lease-back of 52 acres to Summitwood on behalf of the plaintiff who was the original owner of this land. The written agreement of the parties is contained in the original Purchase and Sale Agreement (Exhibit 2), as well as in an Amendment to the Purchase and Sale Agreement (Exhibit 5). In addition, a simultaneously signed letter also has been used by the plaintiff and the defendants to explain the meaning of the agreement of the parties. Further, the document clearly states this purpose on its face, as follows: “This letter will confirm and evidence our agreement that notwithstanding anything in the Agreement to the contrary . . .” Exhibit 34, p. 1 para. 2. The question here is whether the parties tied the question of the delivery of the lease to its approval by the CSC. In this case, the intense negotiations of the parties led to language that could have been more clearly expressed. Neither side was successful in succinctly stating the specific result of a denial of the lease by the CSC. Moreover, the parties apparently never included language anticipating a bifurcated decision by the CSC, approving one transaction and not the other. Nonetheless, the court finds the letter to be most instructive on the question before the court.
The agreement of the parties did not end with the amendment to the Purchase and Sale agreement. The final agreement of the parties must include a discussion of the language of the letter, dated December 21, 2000. That language as well as the language of the amendment was painstakingly negotiated between the parties. The letter, however, sheds light upon the agreement of the parties because it directly addresses the possibility of a CSC denial of PDC El Paso’s application, where as the amendment assumes the approval of the application.[18]
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As has been noted, the changes to the electric generation facility were approved but the subject lease was disapproved by the CSC. Returning to the specific language of section 2(a) of the amendment, it provides that “[t]he Escrow Agent shall deliver the Lease to Summitwood on the approval of the Connecticut Siting Council of the Buyer’s application to amend the decision and order issued by the Connecticut Siting Council for the Power Plant described in the Purchase Agreement.” (Emphasis added.) On the other hand, the letter states that “notwithstanding anything contained in the [amended] agreement to the contrary, in the event of a denial by the Connecticut Siting Council of PDC El Paso[‘s] . . . application for approval of the transactions described in Section 2(a) of the Amendment, the undersigned shall pay to Summitwood the additional sum of Seven Hundred Sixty Thousand ($760,000.00) Dollars.” (Emphasis added.)
Section 2(a) of the amendment primarily describes the 52-acre lease-back agreement, the escrow and the permitted uses of the leasehold property by Summitwood. Therefore, the “transactions described in Section 2(a) of the Amendment” not only refer to the “Power Plant,” but to the lease transaction as well. The letter additionally describes two circumstances under which the $760,000 payment would not be due to Summitwood: (1) if the CSC “approves the transactions described in Section 2(a) of the Amendment,” or 2) “if no closing occurs.” Under either scenario, Summitwood and the plaintiff would retain an ownership interest in the land in question, and therefore the $760,000 payment would not be due to Summitwood. The plaintiff also argues that the $760,000 payment would have been due and payable if the “Power Plant” changes were denied and the lease approved by the CSC. If the power plant changes were denied and the lease approved, however, Summitwood and the plaintiff would also have retained their leasehold interest in the land, and, therefore, the purpose of the payment of $760,000 would be unclear. Perhaps this payment would be for the anticipated delay of the project. Nevertheless, the court finds this language was intended to require a payment of $760,000 in the event that the application was approved without the approval of the subject lease.[19] Although the pleadings of the parties do not seek relief of this nature, the court merely refers to this aspect of the agreement to assess the relative merits of the claims presented in this case.
The plaintiff in this case claims that the land in question was never subject to the authority of the CSC, and that no one else had the right to make any representation to the contrary. The CT Page 11889-ef plaintiff, however, failed to clearly secure its right to the land subject to the lease. The plaintiff could have withheld the parcel to be retained from the original sale of land, but did not do so and it was included in the deed. The seller could also have perfected its leasehold interest by following the notice or recording requirements of General Statutes § 47-19, but did not do so. The court will not speculate as to why this is the case.[20] Instead, the 52-acre lease was written and secreted into escrow pending the outcome of the CSC proceedings. Now, having failed to openly and publicly preserve its rights to the land, the plaintiff seeks equitable relief in the form of a declaratory ruling in its favor from this court.[21]
B. Special Defenses 1. The Condition Precedent Has Not Been Met
The first special defense of the defendants is that a condition precedent for the delivery of the lease held in escrow has not been met, namely, that it was not approved by the CSC. The court agrees.
“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance . . . A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor . . . If the condition is not fulfilled, the right to enforce the contract does not come into existence . . . Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951).
In light of the language used in the amendment and the letter, and in the light of all the surrounding circumstances, a fair and reasonable construction of the agreement of the parties is that there was a condition precedent to the delivery of the lease by the escrow agent, and that the condition was not met in this case. CT Page 11889-eg
2. The Lease Is Illegal
The second defense is that the lease is illegal since it is contrary to an order of the CSC to transfer the land to Meriden. Because of the court’s ruling on the first special defense, it need not rule on this issue. The court, however, also notes that the validity of the lease in light of General Statutes § 47-19
was neither argued nor briefed by the parties.
3. Collateral Estoppel
The defendants claim as a special defense that the plaintiff should be estopped from the relief it seeks in this case, a declaration of the validity of its lease, in light of the existing CSC’s order to transfer the 52-acre parcel to Meriden. “The fundamental principles underlying the doctrine of collateral estoppel are well established. The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit, Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment.” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 57-58, 808 A.2d 1107
(2002).
“In other words, [the doctrine of] collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of th[at] issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta.” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 58 n. 17.
In the present case, the plaintiff was not a party to the CSC approval process for PDC El Paso’s application for a Certificate of Environmental Compatibility and Public Need. Furthermore, the CT Page 11889-eh legal and equitable issues presented to this court in this case were not addressed by that state agency. Therefore, the doctrine of collateral estoppel is inapplicable.
C. Meriden’s Motion To Dismiss
Meriden contends that the court lacks subject matter jurisdiction over it in this matter because it has no interest in the land subject to the lease. Although the plaintiff claims that delivery of the lease will perfect its right to its leasehold interest in the 52-acre parcel donated to Meriden by the CSC, Meriden claims that its rights to the 52-acre parcel will not be determined in this action. In fact, Meriden does not yet hold a deed to this land; instead, its interest in the land is in the form of a CSC order to transfer the land, which is now held in abeyance having been excluded from the CSC’s February enforcement order. Therefore, Meriden seeks a dismissal with respect to itself in this action.
The plaintiff originally sought a declaration of the validity of the 52-acre lease. This prayer for relief was abandoned at trial. Although this change in relief sought by the plaintiff further attenuates Meriden’s interest in the outcome of this action, the court finds that Meriden’s interest here is sufficiently direct and adverse that it ought to be a party to this action. Therefore, the motion to dismiss is denied.
D. The CSC Is Not A Necessaiy Party
With the exception of Meriden, the parties argue that the CSC should not be added as a party because it cannot be sued under the doctrine of sovereign immunity. Connecticut courts “have long recognized the common-law principle that the state cannot be sued without its consent.” (Internal quotation marks omitted). Tamm v. Burns, 222 Conn. 280, 283, 610 A.2d 590 (1992).
The Supreme Court has held “that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.” (Citation omitted; emphasis added.)Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549
CT Page 11889-ei (2003).[22]
In actions such as this for declaratory judgments, the Supreme Court has recognized two exceptions to the defense of sovereign immunity; first, where a declaratory judgment is requested based on a substantial claim that the state or one of its officers violated a plaintiff’s constitutional rights; and second, where a declaratory judgment is sought based on a substantial allegation of wrongful conduct to promote an illegal purpose in excess of an officer’s statutory authority.[23] See St. George v. Gordon, 264 Conn. 538, 554-55, 825 A.2d 90 (2003). Thus, “[a]n action based on a taking without just compensation may avoid the defense of sovereign immunity where a property interest and constitutional taking are alleged, but only for equitable relief.” 184 Windsor Avenue, LLC v. State, Superior Court, judicial district of Hartford, Docket No. CV H 7060 (April 1, 2004, Dos Santos, J.) (36 Conn. L. Rptr.); see also Tamm v. Burns, supra, 222 Conn. 283.[24]
Neither of these circumstances has been alleged to be present in this case. There is no claim that the state violated the plaintiff’s constitutional rights or acted in excess of its statutory authority, by, for example, taking the plaintiff’s property without just compensation.[25] Rather, the parties seek a declaration as to the rights and obligations of the parties under the terms of the subject lease.
Moreover, the CSC had notice[26] of this action and had sufficient time to petition this court to become a party. Indeed, the CSC passed a resolution in February 2005, to enforce its land transfer order, but with an explicit exception for “the property in Meriden that is the subject of Nipmuck [sic] litigation over its ownership, comprising of [sic] approximately 52 acres.” See footnote 3. Thus, it is clear that the CSC had notice of the existence of this litigation.
IV. CONCLUSION
The court denies the plaintiff’s claim for a declaratory ruling in its favor. Instead, the court finds in favor of the defendants’ first special defense, that the condition precedent for delivery has not been met. CT Page 11889-ej
BY THE COURT
Mark H. Taylor, Judge
“1. Nipmuc Properties, LLC (hereinafter `NIPMUC’) is a Limited Liability Company organized and operating under the laws of the State of Massachusetts.
2. PDC-EI Paso Meriden, LLC (hereinafter `PDC’) is a Limited Liability Company organized and operating under the laws of the State of Connecticut.
3. Meriden Gas Turbines, LLC (hereinafter `MGT’) is a Limited Liability Company organized and operating under the laws of the State of Delaware.
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4. Thomas P. Cadden is an attorney and is the trustee of the `1998 Real Estate Trust’ (hereinafter the `1998 Trust’), a trust organized and existing under the laws of the State of Connecticut.
5. The City of Meriden is a Connecticut municipality.
6. Summitwood Development, LLC (hereinafter `Summitwood’) is a Limited Liability Company organized and operating under the laws of the State of Connecticut.
7. On and prior to July 15, 1998, NIPMUC owned approximately 845 acres of land in Berlin and Meriden, Connecticut (hereinafter the `Real Property’).
8. On and prior to July 15, 1998, Summitwood held the exclusive right to acquire title to the subject Real Property from NIPMUC.
9. On July 15, 1998 Summitwood and PDC entered into a declaration creating said 1998 Trust. Pursuant to said 1998 Trust, Thomas P. Cadden, as trustee, agreed to acquire title to said Real Property from NIPMUC in the name of the Trust.
10. On July 15, 1998, Summitwood, the 1998 Trust, and PDC entered into an agreement entitled `Purchase and Sale Agreement Between and Among Thomas P. Cadden, Trustee of 1998 Real Estate Trust and Summitwood Development, LLC and PDC El Paso Meriden, LLC’ (hereinafter the `Purchase Agreement’).
11. Said Purchase Agreement and related documents and attachments set forth the terms and conditions pursuant to which PDC would acquire the Real Property for the purposes of building a power generation facility (hereinafter the `Facility’).
12. Section 14.12 of the Purchase Agreement gave Summitwood the right to purchase from the 1998 Trust, for no consideration, up to 30 acres of the Real Property, the location of which would be mutually agreed upon by PDC and Summitwood, `upon written CT Page 11889-el notification from Buyer.’ (Purchase Agreement § 14.12).
13. Following execution of the Purchase Agreement, Thomas P. Cadden, as Trustee, acquired the title to the Real Property from NIPMUC.
14. The Purchase Agreement specified that PDC would need Connecticut Siting Council approval for development and construction of said facility. (Purchase Agreement, § 8.1.)
15. On December 21, 2000, Summitwood, the 1998 Trust and PDC, as parties to the Purchase Agreement, executed a document entitled `Amendment to Purchase and Sale Agreement’ (hereinafter the `Amendment’).
16. Among other things, the Amendment provided that upon closing on the Real Property, PDC would lease approximately 52 acres of said property to Summitwood or its nominee, upon satisfaction of certain conditions (hereinafter the `Lease’).
17. Section 2(a) of the Amendment sets forth the following condition for delivery of the Lease: `At the closing, the Buyer [PDC] shall (i) lease the “Proposed Leasehold Parcel’ consisting of 51.935 acres of land, more or less (the “Leasehold Parcel”), to Summitwood or its nominee, (the “Lessee”), as Summitwood may elect in writing no later than (10) days prior to the Closing; and (ii) execute and deliver the quitclaim deed as described in paragraph 2(b) below . . . Said lease, in the form attached hereto as Exhibit A and made part hereof (the “Lease”), shall be executed by the Buyer and delivered to Thomas Cadden, Esquire, (the “Escrow Agent”) upon the execution of this Amendment. The Escrow Agent shall deliver the Lease to Summitwood upon the approval of the Connecticut Siting Council of the Buyer’s application to amend the decision and order issued by the Connecticut Siting Council for the Power Plant described in the Purchase Agreement . . .” (Amendment, § 2(a)).
18. The Amendment also provided for the execution of CT Page 11889-em a quitclaim deed (the `Deed’) transferring title to the 52 acres from PDC El Paso to Summitwood. Section 2(b) of the Amendment sets forth the conditions for delivery of the Deed: `In addition to the foregoing, simultaneously with the execution and delivery of the Lease, the Buyer shall prepare and execute a quitclaim deed in the form attached hereto as Exhibit B and made a part hereof (the “Deed”), conveying the Leasehold Parcel to Lessee for One Dollar ($1.00) and shall deliver said Deed to the Escrow Agent, upon written instruction providing that upon the Lessee obtaining and furnishing the Escrow Agent with a copy of an approval of a resubdivision from the Planning and Zoning Commission the City of Meriden creating upon or subdividing said parcel into one or more separate building lots, . . . the Escrow Agent shall deliver the Deed to the Lessee, thereby consummating such conveyance.’
19. NIPMUC has not made any claim in this case by which it seeks delivery of the Deed, nor has it claimed that the condition for release of the Deed, subdivision approval, has been met. (Revised Complaint.)
20. Pursuant to Section 2(c) of the Amendment, the aforesaid provisions contained in Sections 2(a) and 2(b) of the Amendment, as heretofore described, supplanted the obligation of PDC to transfer the 30 acres set forth in the original Purchase Agreement.
21. Upon execution of the Amendment on December 21, 2000, the Lease was signed by Cadden, Trustee of the 1998 Trust, in favor of NIPMUC, Summitwood’s nominee, and placed in escrow with Cadden as Escrow Agent.
22. On January 10, 2001, PDC and MGT entered into an agreement that assigned to MGT all of PDC’s rights and obligations under the Purchase Agreement, as amended by the Amendment.
23. Also on January 10, 2001, MGT closed on the land transaction to purchase the full 845 acres from Cadden. As the Real Property was located in both Meriden and Berlin, two warranty deeds were executed CT Page 11889-en and recorded.
24. The Meriden warranty deed specifically referred in Item 8 of the description to the Lease as an encumbrance to which said Real Property was conveyed subject.
25. Previously, on April 27, 1999, the Connecticut Siting Council had issued to PDC a Certificate of Environmental Compatibility and Public Need (hereinafter the `Certificate’) for construction of said Facility.
26. The Certificate was issued in accordance with and subject to the terms and conditions set forth in the Decision and Order.
27. The Siting Council’s Findings of Fact stated: `Approximately 700 acres of land would be deeded to Berlin and Meriden or title interest. Some 30 acres of traprock ridges would be under a conservation restriction. About 60 acres around Beaver Pond in Meriden would be restricted to use as open space, recreational purposes, or educational use. An additional 14.6 acres of land would be placed under conservation restriction for vernal pool protection west of the 36-acre site.’ (Findings of Fact, Environmental Considerations ¶ 79, p. 10).
28. The Siting Council’s Decision and Order stated: `The facility shall be constructed and operated substantially as specified by the certificate holder in the application and record, except where otherwise ordered by the council.’ (Decision and Order, Condition 1.a.)
29. On August 2, 2001, MGT submitted a development and management plan (hereinafter a `DM Plan’), requesting the Siting Council’s approval of the construction of the access road to the power plant site excavation and grading.
30. On September 4, 2001, MGT submitted a second DM Plan to the Siting Council seeking to use different turbines at the Facility.
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31. On September 12, 2001, the Siting Council approved MGT’s two DM Plans.
32. On September 7, 2001, PDC submitted a document, entitled `Disposition of Land Within the Larger Parcel’ to the Siting Council.
33. On September 12, 2001, Joseph F. Carabetta, `Agent’ for NIPMUC wrote to Joel Rienbold, Executive Director of the Siting Council, asking that the `Siting Council give due consideration and support for the contact [sic] rights of NIPMUC to that 52 acres.’
34. By letter dated September 14, 2001, `the Council denied a request by PDC-El Paso Meriden, LLC to retain 51.9± acres of land on the 845.5-acre site. The Council ruled that this 51.9±-acre parcel of land be included in the acreage donated to the City of Meriden and the Town of Berlin, Connecticut, a total donation of 808.8 acres.”
35. On September 13, 2001, NIPMUC demanded that Cadden as Escrow Agent deliver the Lease to NIPMUC.
36. The Escrow Agent refused to deliver the Lease.”
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“(b) The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”
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